Opinion 88-27

This
opinion represents the views of the Office of the State
Comptroller at the time it was rendered. The opinion may no
longer represent those views if, among other things, there have
been subsequent court cases or statutory amendments that bear on
the issues discussed in the opinion.

GENERAL MUNICIPAL LAW, §207-a: A village which has terminated
its paid fire department is still obligated to pay a village
firefighter, who was disabled prior to termination of the
department, his full salary under this statute unless there is
a voluntary agreement to the contrary.

You ask if a village which has terminated its paid fire
department is still obligated to pay a disabled village
firefighter his full salary pursuant to General Municipal Law,
§207-a.

Subdivision 1 of General Municipal Law, §207-a provides
that any paid fireman who is injured in the performance of his
duties shall be paid the full amount of his regular salary or
wages until the disability arising from such injuries has
ceased. It further provides that the municipality or fire
district that employed the injured fireman shall be liable for
all medical treatment and hospital care furnished during the
disability.

Subdivision 2 of General Municipal Law, §207-a provides
that payment of the full amount of regular salary or wages
shall be discontinued with respect to a permanently disabled
fireman who is granted an accidental disability retirement
allowance or a retirement for disability incurred in
performance of duty allowance pursuant to the Retirement and
Social Security Law, or similar accidental disability pension
provided by the pension fund of which the fireman is a member.
That subdivision also provides, however, that the municipality
or fire district shall continue to pay any difference between
the disabled fireman's regular salary or wages and the amount
of disability payment until the fireman obtains the mandatory
service retirement age or performs the period of service
specified by law for termination of his services. Pursuant to
subdivision 4 of section 207-a, if a disabled fireman is not
eligible for or granted an accidental disability retirement
allowance, the obligation of the municipality or fire district
to pay the full amount of the fireman's regular salary or wages
similarly terminates after the fireman has obtained the
mandatory service retirement age or has served the period
specified by law for the termination of his services.

The courts have held that General Municipal Law, §207-a is
a remedial statute enacted for the benefit of firefighters and
that this statute should be liberally construed in their favor (Pease v Colucci,
59 AD2d 233, 399 NYS2d 519 [1977]; Mashnouk v Miles, 55 NY2d
80, 447 NYS2d 889, 432 NE2d 761 [1982]). Thus, prior to the
1977 amendment of the statute (L 1977, c. 965, §1), which,
interalia, added subdivisions 2 and 4, it was clear that a
permanently disabled fireman would be entitled to his salary for life (Mashnouk, supra; Matter of Birmingham v
Mirrington,284 App Div 721, 134 NYS2d 456) and that a municipality was
without power to retire such a fireman involuntarily (Mashnouk,
supra; (Weber v Department of Fire of City of Syracuse, 54 AD2d
164, 388 NYS2d 397 [1976]). Moreover, prior to the 1977
amendment, it was settled that the rights of a disabled
firefighter vested at the moment of his disability and that he
could not thereafter be divested of those rights other than by
his own act (Pease, supra).

In Pease, supra, which was decided prior to the 1977
amendment to General Municipal Law, §207-a, it was held that a
fireman who was disabled while holding the rank of lieutenant
was entitled to continue to receive his full salary as
lieutenant even after the city abolished several lieutenants'
positions for economy reasons and the lieutenant was properly
demoted to the rank of firefighter pursuant to provisions of
the Civil Service Law. Therefore, at least prior to the 1977
amendment, it appears that the termination of a fire department
would not extinguish any rights of a fireman receiving benefits
under that statute since such rights vested at the time the
disability occurred and the fireman could not be divested of
these rights involuntarily (Pease, supra).

The 1977 amendment to section 207-a, in part, changed that
statute to permit municipalities to seek the retirement of
disabled firemen who did not themselves apply for retirement
(General Municipal Law, §207-a[2]), and to terminate salary
payments to disabled firemen who reached mandatory retirement
age or attained the age or performed the period of service
specified by applicable law for the termination of service
(General Municipal Law, §207-a[2],[4]). The effect of this
amendment, inter alia, was to permit the retirement of an
eligible disabled fireman with the municipality being liable
only for any difference between his regular wages or salary and
his retirement benefits until the fireman reached mandatory
retirement age (Cook v City of Binghamton, 67 AD2d 469, 416
NYS2d 349 (1979), mod on other grnds 48 NY2d 332, 422 NYS2d
919). Thus, the amendment merely provided a mechanism which
was intended to free municipal resources from an unnecessary
drain by providing that a municipality would not be required to
pay a disabled fireman the full amount of his regular salary
and wages indefinitely and by partially shifting the source of
the payments from the municipality to the New York State and
Local Police and Fire Retirement System in appropriate
circumstances (Mashnouk, supra).

The 1977 amendment did not, in our opinion, in any way
terminate or modify the rights of disabled firemen whose jobs
may have been eliminated subsequent to the occurrence of their
disability. We note that there is nothing in the amendment
which indicates a legislative intent to allow municipalities to
divest themselves of their long-established obligations to
disabled firefighters except to the extent that it removed the
obligation of a municipality or fire district to pay a fireman
the full amount of his regular salary and wages after the fireman
reached the mandatory retirement age and permitted the
municipality or district to transfer part of its obligation
under that statute to the Police and Fire Retirement System in
appropriate instances. Accordingly, it is our opinion that,
pursuant to General Municipal Law, §207-a, the rights of a
firefighter who is employed by a fire department which is
terminated subsequent to the occurrence of the firefighter's
disability remain the same as if the fire department had
remained in existence unless there is a voluntary agreement to
the contrary.

June 15, 1988
Richard E. McLenithan, Esq., Village Attorney
Village of Hudson Falls